Wallace v. Driver

Battle, J. ^The water boundaries of land on running streams, whatever they may be in the beginning, whether the thread of the stream, the water’s edge, ordinary high -or low water mark, always remain the same when they change gradually, as by the process of accretion or attrition. They gradually shift as the water recedes or encroaches; and the area of the riparian owner’s possession varies as they change by thi^/y process. Whatever constituted them at first still cori^ stitutes them so long as it remains permanent or shifts gradually and imperceptibly. Hence, land formed by alluvion, or the gradual and imperceptible accretion from the water, and land gained by reliction, or the gradual and imperceptible recession of the water, belong to the owner of the contiguous land to which the addition is made. This rule has been vindicated by , some one on the principle “that he who sustains the burden of losses and of repairs, imposed by the contiguity of water, ought to receive whatever benefits they may bring by accretion. By others it is derived from the principle of public policy that it is the interest of the community that all land should have an owner, and most convenient that insensible additions to the shore should follow the title to the shore itself.” New Orleans v. United States, 10 Pet. 662, 717; Jefferis v. East Omaha Land Co. 134 U. S. 178; Nebraska v. Iowa, 143 U. S. 359; Gould on Waters, sec. 155; 2 Blackstone, 262. In order to constitute an accretion, it is not necessary that the formation be indiscernible by comparison at two distinct points of time. It is true that it is an addition to riparian land, “gradually and imperceptibly made by the water to which the land is contiguous;” but the true test “as to what is gradual and imperceptible-in the sense of the rule is that, though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on.” Rex v. Lord Yarborough, 3 B. & C. 91, is a good illustration. In that case the court held that 450 acres of land formed by the gradual deposit of ooze, sand and soil from the sea belonged to the owner of the adjoining land as an accretion. Other cases to the same effect may be cited. Jefferis v. East Omaha Land Co., 134 U. S. 178. What has been said of accretions is equally true of the loss suffered from the gradual encroachments of running streams. As their beds change imperceptibly by the gradual washing away of the banks, the boundary lines of contiguous lands change with them; and the owner, having, in the beginning, acquired no fixed freehold in them, but one that shifted with the changes, is limited and confined, in the extent of his rights and possession, by the new boundaries. St. Louis v. Rutz, 138 U. S. 226, 245; Camden & Atlantic Land Co. v. Lippincott, 45 N. J. L. 405; Welles v. Bailey, 55 Conn. 202; Steele v. Sanchez, 72 Iowa, 65; Niehaus v. Shepherd, 26 Ohio St. 40; Wilson v. Shiveley, 11 Oregon, 215; Dunlap v. Stetson, 4 Mason, 349; In re Hull & Selby Ry. 5 M. & W. 327; Scratton v. Brown, 4 B. & C. 485, 10 E. C. L. 670; Foster v. Wright, L. R. 4 C. P. D. 438; Gould on Waters (2 ed.) sec. 155. In Welles v. Bailey, 55 Conn. 292, in speaking of rights acquired by changes gradually made by rivers, it is said: “If a particular tract was entirely cut off from a river by.an intervening tract, and that intervening tract should be gradually washed away until the remoter tract was reached by the river, the latter tract would become riparian as much as if it had been originally such. This follows necessarily from the ordinary application of the principle. All original lines submerged by the river have ceased to exist; the river is itself a natural boundary, and every changing condition of the river in relation to adjoining lands is treated as a natural relation, and is not affected in any manner by the relation of the river and the land at any former .period. If, after washing away the intervening lot, it should encroach upon the remoter lot, and should then begin to change its movements in the other direction, gradually restoring what it had taken from the remoter lot, and finally all that it had taken from the intervening lot, the whole, by the law of accretion, would belong to the remoter but now proximate lot. Having become riparian, it has all riparian rights. This general principle is recognized by all the text writers, and by numerous decisions of the English and American courts. The river boundary is treated in all cases as a natural boundary, and the rights of the parties as changing with the change of its bed.” In Foster v. Wright, L. R. 4 C. P. Div. 438, “the plaintiff was lord of a manor held under grants giving him the rights of fishery in all the waters of the manor, and, consequently, in a river (Eune) running through it. Some manor land on one side, and near, but not adjoining, the river, was enfranchised, and became the property of the defendant. The river, which then ran wholly within lands belonging to the plaintiff, afterwards wore away its bank, and by gradual progress, not visible, but periodically ascertained during twelve years, approached and eventually encroached upon the defendant’s land, until a strip of it became part of the river bed. The extent of the encroachment could be defined. The defendant went upon the strip and fished there.” The court held ‘‘that an action of trespass against him for so doing could be maintained by the plaintiff, who had the exclusive right of fishery which extended over the whole bed of the river, notwithstanding the gradual deviation of the stream on to the defendant’s land.” Judge Bindley said: ‘‘Supposing, therefore, that the plaintiff’s right to fish in the Bune depends on his ownership of the soil of the river bed, I am of the opinion that the plaintiff has that right; for, if he was the owner of the old bed of the river, he has day by day and week by week become the owner of that which has gradually and imperceptibly become its present bed; and the title so gradually acquired cannot be defeated by proof that a portion of the bed now capable of identification was formerly land belonging to the defendant or his successor in title.” In Cox v. Arnold, 31 S. W. Rep. 592 (which was decided by the supreme court of Missouri), it appeared that ‘‘a portion of a fractional section bordering on a navigable stream was.-washed away by the current;” and that ‘‘an accretion formed from an island in the river, and extended within the boundaries of the section, but did not connect with the new shore line.” The court held that the owner of the section had no title to any part of the accretion. Justice Burgess, in delivering the opinion of the court, said : ‘‘It is well settled in this state, by an unbroken line of decisions, that a riparian proprietor on a navigable stream only owns to the water’s edge. * * * * When a riparian owner becomes the owner of land, he acquires, as incident thereto, without price, whatever may be added to it by gradual and imperceptible accretion, while, at the same time, he assumes the risk of losing it all by its being gradually washed away by the waters of the river ; but his line always remains at the water’s edge, wherever that may be. His line expands as the waters recede and accretions form to his land, and contracts as the waters encroach upon and wash away his land. The only way that plaintiff could have regained what land he had lost by its being washed away, and its situs submerged by the waters of the river, was by gradual and imperceptible accretion, beginning at his line, at the water’s edge. In this way he would become the owner, and entitled to the possession, of all land accreted to his original tract, or that portion of it which had not been washed away. Plaintiff’s line being at the water’s edge, he was not entitled to recover in this action, notwithstanding the land began to re-form within the original survey of said quarter section, at a place where the land was, at the time of said survey, uncovered by water ; and it makes no difference that defendant Naylor may not be the legal owner, or that he may be in its wrongful possession.” In St. Louis, &c. Railway Co. v. Ramsey, 53 Ark. 314, it was held by this court that “a riparian owner upon a navigable stream, deriving title from the United States” -to lands in this state, “takes only to high-water mark, and not to the middle of the stream, the title to the bed of the stream being in the state;” and that this high-water mark “is to be found by ascertaining where the presence and action of water are so usual and long continued in ordinary years as to mark upon the soil of the bed a character distinct from that of the banks in respect to vegetation and the nature of the soil.” According to the cases we have cited, the high-water mark, as thus defined, being the boundary line of the riparian owner in this state, is the point at which the formation of all lands acquired by him by accretion must begin. A formation of alluvion beginning at any other point would belong to the state or other party. In that case the gradual and imperceptible addition, which is necessary to constitute an accretion, would be lacking. The reverse of what has been said of accretions and erosions is true of avulsions. Where a stream which forms a boundary line of lands from any cause suddenly abandons its old, and seeks a new, bed, or suddenly and perceptibly washes away its banks, such change of channel or banks (if its limits can be determined) works no change of boundary. The owner still holds his title to the submerged land. If an island or dry land afterwards forms upon it, the same belongs to him. St. Louis v. Rutz, 138 U. S. 226; Gould, Waters, (2 ed.) sec. 158, 159, and cases cited. The burden in this case was on the plaintiff to prove that he was entitled to the land in controversy. The evidence showed that it was entered in November, 1848, and contained at that time 154 acres ; and after that a large portion of it “caved” into the Mississippi river. There was no satisfactory evidence as to how large this portion was in excess of 35 acres, or any evidence as to how long it was in caving, or whether it caved gradually and imperceptibly, or vice versa-, or that the land in controversy was added to his own by accretion, beginning at his line, at high-water mark. He failed to sustain his claim. The instructions given to the jury were fatally defective. It is unnecessary to point out the defects, as we have already said what the law governing the case is. Reversed and remanded. Riddick, J., disqualified.